Tuesday, 17 June 2014

Magna Carta - is she still alive?

City of London copy of Magna Carta
Updated 18th June with additional links

Magna Carta is among the most famous documents in the world.  It was on 15th June 1215, at Runnymede near Windsor, that King John reluctantly acceded to certain demands made by various powerful Barons.  The matter did not end there because King John reneged on the agreement and, after John's death, there were various versions of the charter.  In a speech to the Magna Carta Trust, Lord Neuberger (now President of the Supreme Court of the UK)  looked at some of the subsequent history and I need not repeat it here.

Much of the Charter was concerned with aspects of medieval law and, in particular, matters of importance to the powerful - (see charter text).  Most of the charter was repealed in Victorian times.  Today, on the statute book, are the three remaining Articles in the version of the charter dated 1297.  Article I is concerned
with the freedom of the church; Article IX addresses the freedoms of the City of London and certain other places.  Article XXIX is the one most frequently referred to.  Here is the text as it appears on the UK Statute Law database:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

Article XXIX is an assertion that decisions affecting the liberty of individuals or their property are to be determined by legal process and not in some arbitrary manner.  The idea of the "Rule of Law" took hold and it is in Magna Carta that we see the emergence of the view that even those who rule are subject to the law.  In a lecture at Royal Holloway in June 2011, Lady Justice Arden referred to Magna Carta as 'a monumental affirmation of the rule of law.'   Herein is perhaps the spirit of the law as opposed to its mere letter.  As Earl Warren - Chief Justice of the USA (1953-69) stated - 'It is the spirit and not the form of the law that keeps justice alive.'

Historically, there is no doubting that the ideas originating with Magna Carta have been of enormous influence - see, for example, The influence of Magna Carta on other Constitutions.  English constitutional law remains wedded to the notion that government has to obey the law.  Constitutionally, it is the Queen in Parliament which legislates and, at least in legal theory, seems to be free to legislate for anything it wishes though there are some interesting observations about this in Jackson v Attorney-General [2005] UKHL 56.  The interpretation of the law is for the independent judiciary and judicial review remains a vital instrument for ensuring that government adheres to law.

Writing for the Financial Times - The Myth of Magna Carta - David Allen Green argues that 'as law', Magna Carta 'is of little or no practical use.'  'Nobody in modern times seems to have ever relied on it to determine the outcome of a case. It is not “live” in the way the Bill of Rights is in the United States or similar constitutional guarantees in other countries. It is ornamentation, not legislation.'

and later, Mr Green states:

'But perhaps the worst thing is that Magna Carta provides no check in principle to Parliament legislating against the rights of citizens. All that is needed is an act of Parliament, and individuals can be held without trial and refused access to a lawyer. There is no means by which a statute can be disapplied by reason of it breaching Magna Carta.

Magna Carta does not trump the supremacy of Parliament.'

This view sees the continuing existence of Magna Carta as a barrier to developing a mature approach to constitutional rights.

 ' .. our politicians and judges would prefer us to believe in a medieval myth which allows them to do to us what exactly they would do to us anyway.'

This is a view which merits a great deal of respect and, as a statement of where English law now is, I would not seek to challenge it in any way.  My aim is to offer a mere gloss.  It may be that some form of modern British Bill of Rights will eventually emerge though there will be endless debates as to what should and should not be within any such Bill - see the 2012 Report of the Commission on a Bill of Rights.  Meanwhile, there is the European Convention on Human Rights which has force in domestic law subject to the terms of the Human Rights Act 1998.  The Convention is much maligned by some members of the present government and those individuals do not rule out trying to take us out of the Convention system altogether.  Nevertheless, as a statement of fundamental "human rights" it would probably be difficult to better the Convention.  It recognises the value of the individual in a democratic society and insists that a fair balance be sought where different rights come into conflict. It is therefore interesting that most of the Convention rights can be traced back to a document forged in the turbulent years of 13th Century England - Magna Carta !

See also - UK Human Rights blog post by Adam Wagner - Whose Magna Carta is it anyway?


Text of Magna Carta

The Master of the Rolls (Lord Dyson MR) - Magna Carta, Religion and the Rule of Law

David Allen Green - FT Blog 16th June 2014 - The Myth of Magna Carta

UK Human Rights Blog - Whose Magna Carta is it anyway?

The Lawyer - Magna Carta - what is there left to celebrate? - discusses the ideological attack by the British government on legal aid and access to justice.  Spare five minutes and watch this powerful film setting out why legal aid is so important to our justice system and for a fairer society.

Lord Neuberger - Speech to the Magna Carta Dinner 17th October 2011

Royal Holloway University of London - Magna Carta series of lectures  and, in particular, Lady Justice Arden Magna Carta and the Judges - Realising the Vision

Constitution UK - Crowdsourcing the UK's constitution - London School of Economics and Political Science

City of London and Magna Carta 

The complete Magna Carta texts


  1. If we step back and look to where we are going from where we came things appear depressing. Anonymous witnesses can give secret evidence in cases where a defendant and his/her lawyers are both dependent upon the advise from a 'secrecy lawyer' because they are not permitted to view 'closed material' to mount an informed defense. The use of secretive evidence is not filling any gaps where the law fails but instead its purpose is to circumvent the need for verifiable evidence, or the Judiciary, along with national, and, international law. A Minister (politician) can effectively sweep aside an 800 year heritage of British common law development so that he, as Minister or 'Bailiff', can hold both an individual and the Judiciary ‘out of his law’. The assault on democracy and long established common law fair trial principles and international human rights guarantees are quite stark when compared against the relevant Chapters of the Magna Carta, an 800 year old document that aimed to secure rights and prevent tyranny.

    I think Lord Hoffman, in A, X and others v Home Dept. [2004] UKHL 56 gave some perspective to the Government's anti-terrorist hysteria that civil liberties need to be curtailed:

    "96. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. [2004] UKHL 56 at 96."

  2. 18 June 2014

    Dear Obiter J,

    Thank you very much for your timely article on Magna Carta. Please may I ask what you believe to be the position regarding "Do Not Rescuscitate" patients who have NOT been asked for their views, but has been placed on them by doctors "in the patient's best interests"?

    It would appear to me that we have a Charity Commission which allowed the General Medical Council to be accorded Charitable Status in 2001. The charitable object specifically referred to life and the saving of life. Wherein does it state that as a "Charitable Status", GMC-regulated doctors - and they cannot practise unless they have such licence can they in the UK? - can determine of their own accord to remove the automatic right of resuscitation status of any patient without first obtaining consent of that patient?

    I believe that Habeas Corpus, linked with Magna Carta in the minds of many people, could be argued here.

    The advancement of health or the saving of lives - Charity ...


    the provision of life saving or ... considering issues of charitable status. GMC’s activities ... with objects to relieve sickness and ...

    The advancement of health or the saving of lives


    the provision of life saving or ... considering issues of charitable status. GMC’s activities ... with objects to relieve sickness and ...

    Guidance on charitable purposes - Charity Commission


    To be a charity an organisation ... health or the saving of lives ; ... for charitable status by an organisation with objects to promote general charitable ...

    I would be most grateful for your views in light of the most recent caselaw on DNAR that is in the national press today.

    Thank you very much.

    Yours sincerely,

    Rosemary Cantwell

  3. One can do no better than to quote the esteemed Jurist, Anthony Aloysius St John Hancock. "Does Magna Carta mean nothing to you? Did she die in vain? Brave Hungarian peasant girl, who forced King John to sign the pledge at Runnymede and close the boozers at half past ten! Is all this to be forgotten?....